KORDOPATIS v. HURNEY

March 31, 1966

IN THE MATTER OF VASILIOS KORDOPATIS,v.L.W. HURNEY.

The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Petition for issuance of a writ of habeas corpus.

This petition for issuance of a writ of habeas corpus is
brought by a 26 year old Greek citizen, a deserting crewman of a
Greek vessel, who is presently confined in the Cook County Jail,
Chicago, Illinois, without bail, awaiting deportation, or, in the
event of a favorable appeal, voluntary departure. Relief in the
form of release on bail pending review is sought.

Deportation proceedings were instituted against petitioner on
March 8, 1966, after his arrest for remaining in the United
States for a period longer than that permitted by law. After a
hearing, the Special Inquiry Officer of the Chicago Office of The
Immigration and Naturalization Service, denied petitioner's
application for voluntary departure and ordered the petitioner
deported pursuant to Section 241(a)(2) of the Immigration and
Nationality Act. The District Director thereupon ordered that the
petitioner be held in custody of the Service without bond
pursuant to the provisions of 8 C.F.R. § 242.2. An appeal of said
bail denial was dismissed by the Board of Immigration Appeals on
March 18, 1966, prompting the instant action for release pending
review on the merits.

Section 242(a) of the Immigration and Nationality Act (Sec.
1252(a), Title 8, U.S.C.) expressly provides for habeas corpus
relief with regard to release on bond only "upon a conclusive
showing * * * that the Attorney General is not proceeding with
reasonable dispatch as may be warranted by the particular facts
and circumstances in the case of any alien to determine
deportability."

It is clear that petitioner has not made any such allegation or
showing thereon, as, indeed, he could not. The record reveals
that the petitioner was granted a hearing on deportability the
day after he was taken into custody, and that said hearing was
continued for a week on petitioner's own request. Immediately
thereafter, on March 18, 1966, he was ordered deported, from
which order he reserved appeal. Respondent has clearly acted with
"reasonable," if not exceptional, dispatch in this matter, and no
relief can lie under the aforesaid express terms of Section
242(a).

Contrary to the contentions of respondent, however, we adhere
to the view advanced in United States ex rel. Yaris v. Esperdy,
(2d Cir.) 202 F.2d 109, and United States ex rel. Belfrage v.
Shaughnessy, (2d Cir., 1954), 212 F.2d 128, and hold the
enactment of Section 242(a) of the 1952 Act was not intended to
restrict the power of judicial review existing theretofore,
Yanish v. Barber, 73 S.Ct. 1105, 97 L.Ed. 1637 (1953). That is,
in the opinion of this Court, we have the power to admit the
petitioner to bail pending appeal on the deportation order on "a
clear and convincing showing that the decision against him was
without a reasonable foundation." United States ex rel. Potash v.
District Director, (2d Cir.,) 169 F.2d 747, 751. As stated in
Yaris, supra, by Judge Chase of the Second Circuit Court of
Appeals, affirming a decision of Judge Irving Kaufman, then of
the Southern District of New York:

"In the absence of clear language to the contrary, we
cannot construe the statute to give the Attorney
General unbridled license to exercise his discretion
as to detention in whatever arbitrary or capricious
way he might see fit, provided only that he act with
reasonable dispatch to obtain a decision as to the
alien's deportability. On the contrary, we think his
discretion as to keeping an alien in custody is
judicially reviewable to the same extent as it was
before. Section 242 provides but an added statutory
recognition of a basis for judicial review, not a
limitation upon the power
as it had existed." 202 F.2d 109 at page 112.

Having established our jurisdiction to review the denial of
bail, however, we must conclude that the record does not support
plaintiff's assertions.

It is apparent, initially, that the problem of deserting
crewmen is a serious one which has been given special treatment
by Congress (See Sections 1282(a), (b), (c), 1284(a), (b), and
1287, Title 8, U.S.C.) and which must be handled strictly by the
District Director. Further, some weight must be given to the fact
that during the year ending June 30, 1964, 1,131 Greek crewmen
deserted their carriers at United States air and sea ports,
almost three times the number of the next highest country, China,
which had 426, and nearly a third of the total, 3,615. See Annual
Report of the Immigration and Naturalization Service, U.S. Govt.
Printing Office, (1964), at page 78.

In addition to the above factors, the respondent Director
considered a number of other circumstances when refusing to grant
release to the petitioner on bail:

1) Petitioner was, without question, illegally present in this
Country, and was therefore subject to deportation, or at least,
voluntary departure if appeal was successful;

2) Investigation conducted by the Immigration and
Naturalization Service at Philadelphia, Pa., and Chicago, Ill.,
and a sworn statement made by petitioner on March 7, 1966,
revealed that petitioner intended to desert his ship and remain
in the United States even before he left his vessel on March 4,
1966;

3) Petitioner was apprehended while hiding behind a door in his
cousin's apartment to escape capture, a practice he apparently
followed ...

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